By Jehan Perera
A government minister has pronounced that the vaccine alone may not resolve the Covid perhaps to comfort those who are not able to access the vaccine. For a similar reason another government minister has said that a second dose of vaccine may not be necessary to give effective protection from the coronavirus. Yet another minister has stated it may be possible to give a second vaccine that is different from the first and that research is underway in the country to ascertain this. There were high expectations when President Gotabaya Rajapaksa was elected that the country would de-politicise its decision-making and a new era of expert decision-making would end the role of politicians in it. This would have reversed the downside of the constitutional change made in 1972 that elevated the power of elected politicians over the state bureaucracy to make decision-making more accountable to the people.
A half century later, even under the administration of a president of whom much has been expected, Sri Lanka runs the risk of becoming the laggard of South Asia even as it borrows dollars from India and now Bangladesh. The politicization of decision-making has cost the country heavily in a very visible way in terms of dealing with the coronavirus. Sri Lanka enjoyed initial success due to tough measures to implement a two-month lockdown last year implemented primarily by the security forces. The security forces also performed their intelligence function with skill, tracing those who had been infected and those who were their close contacts. But when politics took over it went downhill fast. The manner in which government ministers took on the concoctions of those who claimed metaphysical powers and knowledge that went beyond regular science was beyond belief.
The knowledge of the national universities and professional associations in those fields was set aside and politically-connected experts given pride of place. Why turmeric, an essential food item and a household antiseptic was singled out from all other spices to be banned and imports that were seized were burnt, has no rational explanation. In the case of the coronavirus, irrational belief in the occult meant that valuable time was lost. Sri Lanka failed to place the necessary orders for vaccines on time. It may be that as in the case of the ban on chemical fertilizers that was imposed on farmers with hardly any notice, there was a belief that the country could conserve its scarce foreign exchange by relying on indigenous knowledge. The price that is being paid today for irrationality is a heavy one. A minimum of 30 deaths, each one some family’s beloved, are reported each day along with close to 3000 new cases.
OVER 60 EXCLUDED
The country is going into its third week of lockdown that was imposed without giving the people sufficient notice to make alternative arrangements with regard to their livelihoods and food supplies.
The impact of political decision-making can also be seen in the priority lists that have emerged in practice to deal with the short supply of vaccines. The news media showed ugly scenes of chaos where elected politicians tried to override the expertise of medical personnel on duty at a Covid vaccination site to insist on their own priority list to meet the shortages. Decision have been made to prioritise the claims of certain categories of persons who have personal relations with decision-makers. This is indicative of the breakdown of the rule of law, which is not just any law, but law that is just. The most shocking omission from the priority list has been the neglect of those over the age of 60 which has not been the practice in countries that have given priority to life over other considerations.
A seminal article on this theme has been written by Dr T Jayasingam, professor of Botany and former Vice Chancellor of Eastern University. “It is shocking but true. 70% of the 801 (around 560) persons who had died of COVID until 10th May 2021, as per the Statistics by the Epidemiology Unit of Ministry of Health dated 10th May 2021 were above the age of 60. Most of them would have been people who had led careful lives to get to that point, only to be struck down by a virus that caught their government unprepared…There are about 18% of population above 60 years of age and death of 70% of that category is out of proportion. The need for vaccinating the over 60 years age category as done in other parts of the world was highlighted in the media from February 2021 onwards when the possibilities of vaccination was becoming a reality…” https://www.colombotelegraph.com/index.php/who-has-the-right-to-priority-in-covid-protection/ Parliamentarians have been offered vaccination on a priority basis regardless of their age.
Older people might be less able to work and bring in income to the family and to the country. But they are the repositories of the country’s history and culture and the guides of the younger generations who risk losing their way in the rush to development sans values. It is important that these vulnerable groups are reached by the vaccination process because the protection of the most vulnerable is the sign of a civilized society. The death last week of Ven Baddegama Samitha, aged 68, of Covid- induced pneumonia is a great loss to the country at large. The Venerable monk was a committed socialist and non-violent activist who had to flee the country during the period of the JVP insurrection in the late 1980s when he was in the university. He went to England and obtained his university degree there and obtained a breadth of learning that he used in his political career. He was the first Buddhist monk to win election to parliament which he did on a socialist platform as a member of a left wing political party. He supported the peace movement and was a champion of inter-ethnic harmony.
Covid also took away former Speaker W J M Lokubandara and TNA MP Thurairatnasingam. Another less well known person who died of Covid during the last week was Sunil Jayaweera, aged 60, chairman of the Panduwasnuwara Pradeshiya Sabha whom I met in April this year. This was on the occasion of the opening of an inter-religious harmony centre in a predominantly Muslim village in Kurunegala district.
He had come along with other dignitaries from the area, including Buddhist monks and the police as a gesture of inter-ethnic solidarity. He spoke a few words on the occasion. Among the points he made was that the younger generation had fewer inter-community linkages than those of older generations. This may be due to the changing nature of society and the economy where people spend less time with other people and more time with machines or doing narrow and specialized jobs. He showed the value of the older generation that the Covid virus is taking away from us.
When I called the Moulavi at the village who had invited me to inquire about Chairman Jayaweera’s untimely death, he said that several people in the village too had succumbed to Covid. He said that his relative had refused to go to hospital until it was too late. The issue of Muslim burial in their home areas is important to Muslims so they prefer to take the risk and stay at home rather than having their bodies cremated or sent to faraway Ottamavedi in the east which is the only place the government has permitted burial of bodies of Covid infected people to take place. With Covid spreading swiftly across country regardless of the ban on burials of Covid bodies, the government needs to reconsider its insistence on cremation which is a harassment to Muslims, outside of WHO guidelines and is not found in other parts of the world.
Instead of digging in its heels, the government also needs to reconsider its policy of not giving priority in vaccination to those in the age group above 60. Now more than at any other time, when the country lurches from crisis to crisis, whether in term of how to deal with its economic debt, the crisis in agriculture due to the fertilizer ban which is causing unrest amongst farmers, or the role of China in Sri Lanka, there is a need to safeguard the repositories of history and culture to the extent possible. The politics of decision making which is led by non-experts in the field of health needs to give way to the opinion of experts who adhere to international practice. The way to restore the waning spirits of the people is to show commitment to the defeat of Covid. Focusing on boosting incomes through bringing in Ukrainian tourists, continuing with mega-highway projects or even Port City itself, is no substitute for saving lives.
TNGlive relieving boredom
Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.
Our local artistes are feeling the heat and so are their counterparts in most Indian cities.
However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.
And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.
Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.
She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.
What an awesome performance.
Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.
Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution
The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.
Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).
Applicable constitutional provisions
Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.
Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.
Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.
Violation of fundamental rights and need for a referendum
Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.
The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.
The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”
A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.
When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”
In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.
Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.
However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.
The need to refer the Bill to Provincial Councils
The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.
In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.
It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.
The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.
A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.
‘Down On My Knees’ inspires Suzi
There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.
Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.
Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’
In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.
“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.
“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”
Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.
“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”
A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.
In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!
In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.
Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).
“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’
Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.
“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”
In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,
She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.
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